Citation Nr: 9932366
Decision Date: 11/17/99 Archive Date: 11/29/99
DOCKET NO. 95-21 557 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUE
Entitlement to an evaluation in excess of 20 percent for
service-connected bilateral spondylolisthesis at L5 with
chronic back strain.
ATTORNEY FOR THE BOARD
L. A. Mancini, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1978 until
December 1987.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of a
November 1994 rating decision by the Department of Veterans
Affairs (VA) Regional Office (RO), located in Houston, Texas
which assigned a 10 percent disability rating for a low back
disability. In June 1999 a 20 percent disability rating was
assigned, effective August 27, 1991.
FINDING OF FACT
The competent evidence of record shows that the veteran
suffers from no more than moderate back impairment, without
evidence of severe, recurring attacks or a pronounced
condition with persistent symptoms.
CONCLUSION OF LAW
The schedular criteria for a rating in excess of 20 percent
for bilateral spondylolisthesis at L5 with chronic back
strain have not been met. 38 U.S.C.A. § 1155 (West 1991);
38 C.F.R. §§ 4.71a, Diagnostic Code 5293 (1999).
REASONS AND BASES FOR FINDING AND CONCLUSION
The veteran is seeking entitlement to an evaluation in excess
of 20 percent for his service-connected back disability. In
the interest of clarity, the Board will begin by discussing
the relevant law and VA regulations. The factual background
of this case will then be reviewed, followed by an analysis
of the veteran's claim.
Relevant law and VA regulations
Disability evaluations are determined by the application of
VA's Schedule for Rating Disabilities (Schedule), 38 C.F.R.
Part 4 (1999). The percentage ratings contained in the
Schedule represent, as far as can be practicably determined,
the average impairment in earning capacity resulting from
diseases and injuries incurred or aggravated during military
service and the residual conditions in civil occupations. 38
U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). In determining the
disability evaluation, the VA has a duty to acknowledge and
consider all regulations which are potentially applicable
based upon the assertions and issues raised in the record and
to explain the reasons and bases for its conclusion.
Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).
Governing regulations include 38 C.F.R. §§ 4.1, 4.2 (1999),
which require the evaluation of the complete medical history
of the veteran's condition.
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in
Fenderson v. West,
12 Vet. App. 119 (1999), the United States Court of Appeals
for Veterans Claims (known as the United States Court of
Veterans Appeals prior to March 1, 1999) ("the Court") held
that evidence to be considered in the appeal of an initial
assignment of a rating disability, such as in this case, was
not limited to that reflecting the then current severity of
the disorder.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
for that rating. Otherwise, the lower rating will be
assigned. 38 C.F.R. § 4.7 (1999).
Pursuant to 38 C.F.R. § 4.20 (1999), where, as here, an
unlisted condition is encountered it will be permissible to
rate under a closely related disease or injury in which not
only the functions affected, but the anatomical localization
and symptomatology are closely analogous.
38 C.F.R. § 4.71a, Diagnostic Code 5293, provides for a 20
percent rating for intervertebral disc syndrome which is
moderate with recurring attacks. A 40 percent rating is
warranted when the intervertebral disc syndrome is severely
disabling with recurring attacks and intermittent relief.
The highest rating assignable under this code is 60 percent
which requires a pronounced condition with persistent
symptoms compatible with sciatic neuropathy with
characteristic pain and demonstrable muscle spasm, absent
knee jerk, or other neurological findings appropriate to site
of diseased disc, little intermittent relief. 38 C.F.R.
§ 4.71a, Diagnostic Code 5293.
38 C.F.R. § 4.71a, Diagnostic Code 5295, lumbosacral strain,
provides for a 20 percent rating for muscle spasm on extreme
forward bending, loss of lateral spine motion, unilateral, in
standing position, and a 40 percent rating for severe strain,
to include limitation of forward bending in the standing
position, loss of lateral motion, and narrowing or
irregularity of joint space.
Under Diagnostic Code 5292, limitation of lumbar spine motion
will be rated as 10 percent disabling where slight, 20
percent disabling where moderate, and 40 percent disabling
where severe. 38 C.F.R. § 4.71a, Diagnostic Code 5292.
Words such as "slight", "moderate" and "severe" are not
defined in the VA Schedule. Rather than applying a
mechanical formula, the Board must evaluate all of the
evidence to the end that its decisions are "equitable and
just." 38 C.F.R. § 4.6 (1999). It should also be noted
that use of terminology such as "mild" by VA examiners or
other physicians, although an element of evidence to be
considered by the Board, is not dispositive of an issue. All
evidence must be evaluated by the Board in arriving at a
decision regarding an increased rating. 38 U.S.C.A.
§ 7104(a); 38 C.F.R. §§ 4.2, 4.6 (1999).
38 C.F.R. § 4.71a, Diagnostic Code 5292, pertains to
limitation of motion. However, a precedent opinion of the
General Counsel of the Secretary of VA, VAOPGCPREC 36-97
(December 12, 1997), held that Diagnostic Code 5293 involves
loss of range of motion because the nerve defects and
resulting pain associated with injury to the sciatic nerve
may cause limitation of motion of the cervical, thoracic, or
lumbar vertebrae.
38 C.F.R. § 4.71a Diagnostic Codes 5003 and 5010 apply to
degenerative traumatic arthritis and provide that such
diseases are evaluated based on limitation of motion of the
affected part. Where the limitation of motion of the
specific joint or joints involved is noncompensable, under
the applicable diagnostic codes, a rating of 10 percent is
warranted where arthritis is shown by x-ray and where
limitation of motion is objectively confirmed by evidence of
swelling, muscle spasm, or painful motion. 38 C.F.R.
§ 4.71a, Diagnostic Code 5003.
The evaluation of a service-connected disability involving a
joint rated on limitation of motion requires adequate
consideration of functional loss due to pain under 38 C.F.R.
§ 4.40 and functional loss due to weakness, fatigability,
incoordination or pain on movement of a joint under 38 C.F.R.
§ 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995).
The provisions of 38 C.F.R. § 4.40 state that the disability
of the musculoskeletal system is primarily the inability, due
to damage or infection in parts of the system, to perform the
normal working movements of the body with normal excursion,
strength, speed, coordination, and endurance. According to
this regulation, it is essential that the examination on
which ratings are based adequately portrays the anatomical
damage, and the functional loss, with respect to these
elements. In addition, the regulations state that the
functional loss may be due to pain, supported by adequate
pathology and evidenced by the visible behavior of the
veteran undertaking the motion. Weakness is as important as
limitation of motion, and a part which becomes painful on use
must be regarded as seriously disabled. 38 C.F.R. § 4.40.
The provisions of 38 C.F.R. § 4.45 state that when evaluating
the joints, inquiry will be directed as to whether there is
less movement than normal, more movement than normal,
weakened movement, excess fatigability, incoordination, and
pain on movement.
Except as otherwise provided in the rating schedule, all
disabilities, including those arising from a single disease
entity, are to be rated separately, unless the conditions
constitute the same disability or the same manifestation. 38
C.F.R. § 4.14 (1999); see Esteban v. Brown, 6 Vet. App. 259
(1994). The critical inquiry in making such a determination
is whether any of the symptomatology is duplicative of or
overlapping, as the appellant is entitled to a combined
rating where the symptomatology is distinct and separate.
Esteban, supra, 6 Vet. App. at 262.
Factual background
Service medical records show that the veteran was evaluated
for complaints of back pain. Examiners provided various
diagnoses to include back pain, probable strain; low back
strain; and spondylolisthesis at L5.
The veteran filed his initial application for VA compensation
in August 1991. He underwent a VA orthopedic examination in
November 1991, which noted his medical history. The veteran
reportedly engaged in heavy lifting for a long period of time
during military service, and gradually developed low back
pain, without leg radiation. The veteran indicated that his
back problem resolved after physiotherapy, but that he
subsequently experienced back pain for several days about
once each year. He reportedly treated himself with
exercises. Upon physical examination, the VA examiner noted
that the veteran had no pain on percussion of the lumbosacral
spine, but some pain on pressure over the sacroiliac joints
bilaterally. There was no evidence of atrophy and reflexes
were found to be normal up to 3+ bilaterally. Tiptoe and
heel-walking were found to be normal. Range of motion of the
lumbosacral spine was noted to be within normal limits, take
or leave a degree or two at the most, with minimal discomfort
in the lumbosacral area on extension.
X-rays revealed that the joint space between L-5 and S-1 was
fairly well-preserved and slightly narrowed compared to those
at the upper levels. The VA examiner provided diagnoses of
status post chronic back strain, and first degree lumbosacral
spondylolisthesis.
In October 1994, the Board granted service connection for
spondylolisthesis. In November 1994, the RO implemented the
Board's decision, assigning a 10 percent disability rating
for spondylosis with spondylolisthesis L-5/low back strain.
In a February 1995 Notice of Disagreement, the veteran
contended that the pain in his back was worsening and that a
disability rating of 10 percent did not provide adequate
compensation.
In November 1995, the veteran underwent a VA orthopedic
examination. He reported that over the last four years, in
particular the last two, the back pain had become almost
constant and had increased in severity. He indicated that he
had an occasional left leg pain radiating down the back of
the left leg when his pain was particularly bad. He denied
numbness and tingling, and experienced only an occasional
electrical feeling when his pain was particularly severe.
Upon examination, the veteran's spine appeared normal to
visual inspection. He was noted to walk easily on his heels
and toes, without weakness. Range of motion was noted to be
normal, as the veteran could touch his toes fairly easily,
but he had a stretching sensation in his low back. Flexion
was found to be 95 degrees; extension was 25 degrees;
bilateral bending was 30 degrees each; and rotation was 30
degrees to each side. Straight leg raising was found to be
negative to 90 degrees in both the sitting and lying
positions, except that at about 90 degrees, the veteran
complained of low back pain and a stretching sensation in his
low back. X-rays revealed L5 spondylolysis with L5-S1 Grade
I spondylolisthesis and mild associated degenerative disk
disease at this level. The VA examiner provided a diagnosis
of
spondylolysis/spondylolisthesis by history.
In April 1998, a VA spine examination was conducted. The
veteran reported that he had intermittent episodes of low
back pain, which occurred in the early morning; during
periods of inactivity; and after periods of strenuous
activity; such as bending, stooping, lifting, or twisting.
The veteran indicated that he experienced significant low
back pain after sitting or riding in a vehicle for over two
hours. He stated that he had unlimited walking ability,
which tended to make his back feel better, and could do a
little running. The veteran denied any radiating pain,
tingling, or numbness in his extremities. The veteran
reported that during a one month period, he may experience
difficulty sleeping for about seven days due to back
discomfort. He reportedly worked full-time, and had not lost
any time from work over the past year due to his back
disability. The veteran indicated that he spent a lot of
time walking and bending over in a stooped position. He
reportedly did back flexion and stretching exercises about
four times per week.
Upon examination, the VA examiner noted that the veteran
walked with a normal gait and had normal spine alignment in
the standing position. The veteran demonstrated no back
spasm, and only mild tenderness to palpation over the lowest
lumbar sections and iliolumbar regions. The veteran was able
to forward flex to bring his fingertips to his toes and
experienced some pain in the low back region toward the
terminal phases of this movement. Extension was noted to be
0-10 degrees; right and left lateral bend was noted to be
from 0-40 degrees; and right and left lateral rotation was
noted to be from 0-45 degrees, without significant
discomfort. While sitting, the veteran could fully extend
his knees, and in the supine position, he could straight leg
raise to 80 degrees bilaterally, without discomfort. Gross
muscle testing of the lower extremities was evaluated as
normal, and the veteran was found to walk on his tiptoes and
heels without difficulty. Reflex testing at the knee and
ankle jerks was graded as 2+ bilaterally and found to be
symmetric. X-rays of the lumbosacral spine reportedly
revealed Grade I spondylolisthesis of L-5 of the sacrum, with
some mild degenerative changes at the L4-5, L5-S1
articulations. The VA examiner provided a diagnosis of
spondylolisthesis, L-5 on S-1, Grade I, lytic type.
In a June 1999 rating decision, the RO increased the
veteran's disability rating from 10 percent to 20 percent,
effective as of August 27, 1991.
Analysis
Initial matters-well groundedness of claim/duty to
assist/standard of proof
Initially, the Board notes the veteran's claim is well
grounded within the meaning of 38 U.S.C.A. § 5107(a) (West
1991). When a veteran is awarded service connection for a
disability and appeals the RO's initial rating determination,
the claim continues to be well grounded as long as the claim
remains open and the rating schedule provides for a higher
rating. See Shipwash v. Brown, 8 Vet. App. 218, 224 (1995).
Upon the submission of a well-grounded claim, the VA has a
duty to assist the veteran in developing the facts pertinent
to his claim. 38 U.S.C.A. § 5107(a). In the instant case,
there is ample medical and other evidence of record, the
veteran has been provided several VA examinations, and there
is no indication that there are additional records that have
not been obtained and which would be pertinent to the present
claim. Thus, no further development is required in order to
comply with VA's duty to assist as mandated by 38 U.S.C.A. §
5107(a).
When there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A.
§ 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). In
Gilbert v. Derwinski,
1 Vet. App. 49, 53 (1990), the Court stated that "a veteran
need only demonstrate that there is an 'approximate balance
of positive and negative evidence' in order to prevail." To
deny a claim on its merits, the preponderance of the evidence
must be against the claim. Alemany v. Brown, 9 Vet. App.
518, 519 (1996), citing Gilbert, supra, 1 Vet. App. at 54.
Application of VA Schedule for Rating Disabilities
Diagnostic Code 5293
The veteran is currently rated as 20 percent disabled for his
service-connected back disability pursuant to 38 C.F.R.
§ 4.71a, Diagnostic Code 5293. He contends on appeal that he
should be compensated at a higher level due to the severity
of his disability.
The veteran has been diagnosed with spondylolysis and
spondylolisthesis. Since such disabilities are not
specifically listed in the Diagnostic Code, the criteria of
38 C.F.R. § 4.71a, Diagnostic Code 5293, which pertains to
intervertebral disc syndrome, were used by analogy by the RO.
See 38 C.F.R. § 4.20 (1999).
The RO has assigned a 20 percent disability rating under
Diagnostic Code 5293. For a higher disability rating under
this code, the veteran must demonstrate that he suffers from
severe, recurrent attacks, with intermittent relief, or from
a pronounced condition with persistent symptoms. See
38 C.F.R. § 4.71a, Diagnostic Code 5293.
The Board has carefully reviewed the evidence of record,
which has been reported in detail above. VA examinations
consistently have shown "mild" symptoms, but not severe
impairment or persistent symptoms as required for a higher
disability rating under Diagnostic Code 5293 have not been
demonstrated. Specifically, there is neither evidence of
sciatic neuropathy with demonstrable pain nor of a
neurological disorder. Additionally, the veteran denies
numbness and tingling, and demonstrates no muscle spasm.
Reflex at the knee and ankle jerks were found to be
symmetric.
Moreover, and most significantly, during his most recent VA
examination in April 1998, the examiner observed that the
veteran walked with a normal gait, demonstrated no back
spasm, and had only mild tenderness to palpation over the
lowest lumbar sections and iliolumbar regions. The veteran
was found to extend with either no discomfort or without
significant discomfort. Notably, the veteran, himself,
indicated that the episodes of low back pain were
intermittent and were limited to the early morning, periods
of inactivity, or periods of strenuous activity. The record
demonstrates that the veteran remains active with frequent
walking, some running, and back flexing and stretching
exercises approximately four times per week. The veteran
acknowledges that he finds intermittent relief from back pain
during the frequent periods when he walks.
Although the veteran reportedly experiences difficulty
sleeping for about seven days out of a month due to back
discomfort, there is no indication that he experiences
severe, recurring attacks in his back, or that he suffers
from persistent symptoms. Additionally, in April 1998, the
veteran stated that he had not lost any time from work over
the past year due to his back disability. This statement
appears to confirm that the veteran does not suffer from a
severe or persistent condition.
Similarly, the November 1991 and November 1995 VA
examinations demonstrate that the veteran's spine appeared
normal to visual inspection, and that range of motion, tiptoe
and heel-walking were normal. Although the veteran stated in
November 1995 that his back pain had become almost constant
and had increased in severity, the veteran complained of low
back pain during straight leg raising only at about 90
degrees.
Therefore, the Board concludes that the preponderance of the
evidence is against a higher rating of 40 percent or 60
percent under Diagnostic Code 5293. In essence, the
objective medical evidence discussed above does not reveal
that the veteran's back disability is manifested by severe,
recurrent attacks, with intermittent relief, or by a
pronounced condition with persistent symptoms. The Board has
been unable to identify any specific medical evidence which
is consistent with symptoms warranting a higher disability
rating.
DeLuca considerations
Where a diagnostic code is predicated on loss of motion, VA
must also consider 38 C.F.R. § 4.40, regarding functional
loss due to pain, and 38 C.F.R. § 4.45, regarding more or
less movement than normal, weakness, excess fatigability,
incoordination, pain on movement of a joint, swelling,
deformity or atrophy. See DeLuca, supra, 8 Vet. App. at 204-
207.
The veteran indicates that he not only has unlimited walking
ability, but that he runs. Significantly, when the veteran
walks, he reportedly relieves pain. There is neither
evidence of atrophy nor of incoordination. Notably, the
veteran has normal range of motion and can extend with either
no discomfort or without significant discomfort.
Additionally, the medical evidence shows that the veteran can
walk easily on his heels and toes, without weakness. In this
case, the veteran has not demonstrated any additional
significant functional loss to warrant an increased
evaluation based on 38 C.F.R. §§ 4.40 and 4.45.
Applicability of other Diagnostic Codes
Since a higher disability rating is not warranted under
Diagnostic Code 5293, the Board has explored the possibility
of applying a different Diagnostic Code to the veteran's
disability.
The assignment of a particular Diagnostic Code is
"completely dependent on the facts of a particular case."
See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One
Diagnostic Code may be more appropriate than another based on
such factors as an individual's relevant medical history, the
current diagnosis and demonstrated symptomatology. Any
change in a Diagnostic Code by a VA adjudicator must be
specifically explained. See Pernorio v. Derwinski, 2 Vet.
App. 625, 629 (1992).
The Board must therefore consider which Diagnostic Code or
Diagnostic Codes are most appropriate for application and
provide an explanation for any such finding. See Tedeschi v.
Brown, 7 Vet. App. 411, 414 (1995).
The Board will first consider the potential application of
Diagnostic Code 5295, lumbosacral strain, since the veteran
was diagnosed with back strain. The medical evidence of
record does not reveal muscle spasm on extreme forward
bending or loss of lateral spine motion in the standing
position, which are symptoms of a 20 percent disability
rating. In fact, the veteran demonstrated no muscle spasm,
and was found to touch his toes fairly easily. Accordingly,
the veteran does not demonstrate the symptomatology to
warrant even a 20 percent rating under Diagnostic Code 5295.
He also fails to demonstrate symptoms that characterize a 40
percent disability rating under Diagnostic Code 5295 for
severe lumbosacral strain, to include marked limitation of
forward bending in the standing position, or irregularity of
joint space. Rather, the veteran's joint spaces were found
to be fairly well-preserved. Therefore, the Board concludes
that Diagnostic Code 5295 would not provide the veteran with
a higher disability rating.
The Board has also considered whether a disability rating may
be appropriately assigned under 38 C.F.R. § 4.71a, Diagnostic
Code 5292, which pertains to limitation of motion. While the
medical evidence of record does refer to slight limitation of
motion in November 1991, no physician has noted moderate or
severe limitation as would be required in order to receive an
evaluation in excess of 10 percent under Diagnostic Code
5292, and there is no other evidence to that effect.
Finally, the Board will consider 38 C.F.R. § 4.71a,
Diagnostic Code 5003, pertinent to arthritis, because x-rays
have revealed mild degenerative joint disease. However,
since the veteran is already evaluated as 20 percent disabled
under Diagnostic Code 5293 a separate rating under 38 C.F.R.
§ 4.71a, Diagnostic Code 5003 is not warranted.
In summary, the Board concludes that the veteran is most
appropriately rated under 38 C.F.R. § 4.71a, Diagnostic Code
5293. After reviewing the evidence of record, and for the
reasons and bases discussed in detail above, the Board finds
that the preponderance of the evidence is against assignment
of a rating in excess of 20 percent for the veteran's
service-connected back disability. The benefit sought on
appeal is, therefore, denied.
Additional matter
As discussed above, in Fenderson v. West, the Court held that
evidence to be considered in the appeal of an initial
assignment of a rating disability, was not limited to that
reflecting the then current severity of the disorder. In
this case, the RO has assigned a 20 percent disability rating
for the veteran's service-connected back disability to the
initial date of claim, August 27, 1991. The Board has
reviewed and discussed the evidence above. There is no
indication that the severity of the service-connected back
disability exceeded the 20 percent level at any time since
the initial claim. Accordingly, in this case staged ratings
are not appropriate.
CONTINUED ON NEXT PAGE
ORDER
Entitlement to a rating in excess of 20 percent for a back
disability is denied.
Barry F. Bohan
Member, Board of Veterans' Appeals
Pursuant to VAOPGCPREC 36-97 (December 12, 1997), Diagnostic Code 5293 involves loss of range of
motion. The Board is bound by this opinion. 38 U.S.C.A. § 7104(c) (West 1991).